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Legal Writing Notebook: ‘And/or’ persists because writers love it

Karin Ciano//February 5, 2018

Legal Writing Notebook: ‘And/or’ persists because writers love it

Karin Ciano//February 5, 2018

Karen Ciano
Karin Ciano

A chief pleasure of this column lies in exploring grammar’s schools of thought. To serial-comma or not to serial-comma; to purge that from our sentences or let it flourish; to place two spaces after a period or only one.

But occasionally I encounter issues that truly unite us, like the universal contempt for and/or.

I’ll back up for a moment and quickly remind busy readers that and lets you have it both ways (conjunctive) while or forces you to make a choice (disjunctive). With a hat tip to Schoolhouse Rock’s song “Conjunction Junction,” compare “milk and honey, bread and butter, peas and rice” (hey that’s nice!) with “either now or later, eat this or that, grow thin or fat.” Both words are used to link other words within a sentence, and have opposite effects on the meaning of the sentence. Yet they’re powerfully attracted to each other — and they stir powerful emotions in legal writing authorities.

“A legal and business expression dating from the mid-19th century,” observes Bryan Garner in Modern English Usage, “and/or has been vilified for most of its life — and rightly so. To avoid ambiguity, don’t use it.” Lenne Espenschied’s Grammar and Writing Handbook is equally direct: “Do not use and/or because ‘and’ and ‘or’ are not commonly paired together; this usage always creates ambiguity.” Kenneth Adams devotes several pages of his Manual of Style for Contract Drafting to the topic, and doesn’t necessarily agree about the ambiguity — “X and/or Y means X or Y or both” — but notes that “X or Y or both is clearer” and should be preferred. Simply put, no authority on grammar or writing recommends using and/or.1

Courts double down on that. The use of and/or has invalidated search warrants and convictions.2 An esteemed bankruptcy judge of this district forbids lawyers to use and/or in proposed orders.3 The Minnesota Supreme Court condemned and/or back in 1951.4 Nearly 60 years later, the Minnesota Court of Appeals had this to say:

The phrase and/or is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive. Laypersons often use the phrase and, surprisingly, lawyers resort to it from time to time. It is an indolent way to express a series of items that might exist in the conjunctive, but also might exist in the disjunctive. … If used to refer to a material topic … the expression “and/or” creates an instant ambiguity. Furthermore … a bad-faith reader of a document can pick whichever one suits him—the “and” or the “or.” At the very least, this sloppy expression can lead to disputes; at the worst to expensive litigation.5


Now I’ll pile on. I’m not generally a fan of any usage involving a slash (or “stroke” as the Brits say). Even when it’s clear enough grammatically, it leaves open too many questions about what the author intends. Also it’s very, very ugly to speak aloud. I might even have recently and publicly opined that the use of and/or resembled a stench in the nostril of the Almighty.

And then? Then I went right back to my office and wrote out a set of interrogatories bristling with and/or.6 Horrifying hypocrisy, yet a fascinating teachable moment. I know better. I teach better. Why can’t I resist the temptation? Can anyone stop me before I / again?

Apparently I am not alone. For all their condemnation, courts sometimes find and/or clear enough (as did the Minnesota Court of Appeals in another case the week before it found and/or “semantically and logically contradictory”).7 The phrase has a “plain and ordinary meaning” as well as a dictionary definition (“either of both of the items connected by it are involved.”)8 And/or is unclear and ambiguous. Except when it isn’t.

Perhaps the ambiguity is in the eye of the beholder. When we’re writing, the future’s not ours to see; and/or is a quick-and-dirty way to signify it could be either one or it could be both. In the back of our minds, we know there are more precise options:

  • Just use or (the best choice in persuasive writing)
  • “X or Y or both”
  • “A, B, C, and D together, or any combination together, or any one of them alone”

But those options all require us, the writers, to make a choice. It’s more effort on our part. It forces us to confront that we don’t know all we’d like to know. We might be wrong. It takes longer to write. And ugly as and/or is, it’s shorter than all of the alternatives (except just or). Whatever its faults, and/or plays reasonably well in the middle of a sentence without hijacking the reader’s attention (imagine the effect of repeating “A, B, C, and D…” every other sentence).

So, although readers hate it, and/or persists because writers love it. And writers love it because it makes their lives simpler and easier.  But dear readers, on behalf of your own readers, I make this appeal: it’s time to break up with and/or. Be strong and walk away. Your readers will thank you.


  1. Standing offer whenever I make grand pronouncements like this: prove me wrong and I’ll buy you a coffee.
  2. See, e.g., State v. Gonzalez, 130 A.3d 1250, 1255 (N.J. 2016); State v. Pecha, 407 N.W.2d 760, 681 (Neb. 1987)
  3. See
  4. Rodany v. Erickson, 49 N.W.2d 193, 196 (Minn. 1951).
  5. Carley Foundry, Inc. v. CBIZ BVKT, LLC, No. A09-1018, 2010 WL 1286836, and *4 (Minn. Ct. App. Apr. 6, 2010). For this quote, and the topic generally, I am indebted to Lavern Pritchard.
  6. See Romans 7:15 (“I do not understand what I do. For what I want to do I do not do, but what I hate I do.”)
  7. See Re-Solutions Intermediaries, LLC v. Heartland Fin. Grp., Inc., No. A09-1440, 2010 WL 1192030, *1-2 (Minn. Ct. App. Mar. 30. 2010).
  8. Id. at *2 (citing The American Heritage Dictionary 68 (3d Ed. 1992)).


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